End all forms of harassment against human rights defenders in Malaysia

Human Rights groups voice their concern

KUALA LUMPUR: The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), expresses its concern about the outcome of the judicial case against human rights defender Charles Hector Fernandez, who was sued by a company for publishing information regarding the violation of the rights of 31 Burmese migrant workers in Malaysia.

On August 25, 2011, the case against human rights defender Charles Hector Fernandez before the Shah Alam High Court ended in a settlement between the defender and the company that had sued him for civil “defamation”. According to the settlement, Mr Charles Hector Fernandez will pay 1 Malaysian Ringgit in costs and the same amount in damages to the company, and will publish a half-page apology in the Malaysian daily newspapers The Star and Nanyang Siang Pau.

Mr Charles Hector Fernandez was sued in February 2011 by the Japanese-owned company Asahi Kosei, in Selangor, Malaysia, for publishing information on-line regarding the violation of the rights of 31 Burmese migrant workers by this company.

Asahi Kosei Company was demanding a compensation of USD 3.3 million, in addition to a public apology, with the argument that these 31 Burmese workers have not been under their responsibility, as they were supplied to them by an ‘outsourcing agent’ [1]. The Observatory sent an international mission to observe the trial against Mr Charles Hector Fernandez and to investigate the situation of human rights defenders in Malaysia.

“The case of Charles Hector Fernandez shows how powerful corporate interests are taking on and silencing a human rights defender by his horns. Using exorbitant civil libel claims against human rights defenders reporting alleged corporate abuse sends a dangerous precedent with a chilling effect on the legitimate work of human rights defenders,” said Ms Sudha Ramalingam, following the observation of the trial.

The Observatory is concerned that the human rights defender in this case was left with little choice other than accepting a settlement having the effect of sanctioning his activities as a defender of the rights of migrant workers. For many years, Mr Charles Hector Fernandez has provided vital legal assistance to workers and migrants seeking justice.

The Observatory calls upon the authorities of Malaysia to put an end to all forms of harassment against human rights defenders in the country, including through criminal or civil libel laws, and to ensure full conformity with the United Nations Declaration on Human Rights Defenders and other international and regional instruments ratified by Malaysia.

The Observatory also reminds private actors including business enterprises, of their responsibility of respecting human rights and exercising due diligence to avoid complicity in abusing human rights in countries where they operate. - Herald Malaysia Online, 19/9/2011, Human Rights groups voice their concern

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - some responses

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - June 2011

In February 2011 the Malaysian subsidiary of Japanese machine parts manufacturer, Asahi Kosei, sued Malaysian labour activist Charles Hector for defamation for statements the activist had posted on his blog and Twitter page regarding the plight of Burmese workers at the company's factory. The trial has been set for 28-29 June. In the intervening period a number of NGOs criticised the company calling upon it to drop the lawsuit and address the concerns that Hector raises.

On 23 June Human Rights Watch issued a statement about the case, which was reported by the Associated Press. That article states that Asahi Kosei was invited to comment, but declined:

"Company chastised for suing Malaysia rights lawyer", Sean Yoong, AP, 23 Jun 2011

"...The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding...$3.3 million...in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation...Human Rights Watch complained about the large sum the company is seeking, saying it could 'intimidate labor and human rights defenders all over Malaysia.'...Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case. The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers..."

On 27 June, the eve of the opening of the trial, the NGO Article XIX made this plea to the Malaysian Court to consider Hector's rights to freedom of expression:

"Malaysian Blogger Defamation Case: Cause for Concern", Agnes Callamard, Article XIX, 27 Jun 2011

"Ahead of Malaysia human right defender and blogger - Charles Hector’s defamation trial on 28-29 June 2011, ARTICLE 19 calls on the Malaysian Court to consider the case in line with international freedom of expression standards. Given the fundamental importance of the right to freedom of expression, and its recognition in Article 10 of the Malaysian Constitution, ARTICLE 19 urges the Court to ensure that Malaysian defamation law is interpreted, to the extent possible, in a manner that respects Hector’s freedom of expression..."

The following is a selection of earlier NGO criticism of the company:

"International Campaign for Responsible Technology concerned by Asahi Kosei", Ted Smith, Coordinator, International Campaign for Responsible Electronics, 24 Mar 2011

"To: Asahi Kosei Japan Co. Ltd... I am writing to you regarding the flagrant human rights violations undertaken by Asahi Kosei against Malaysian labor activist Charles Hector...Before any posting [by Hector regarding the situation of the Burmese workers], an email was sent to the company for clarification/verification, which contained also these words, “If there is anything that you would like to correct, kindly revert to me immediately. An urgent response would be appreciated. Failing to hear from you, I would take it that the allegations of the workers are true.” The company did not respond, and subsequently commenced a legal suit six days later. The punitive lawsuit...accentuates the harsh reality of Burmese migrant workers in Malaysia...It is a matter of public interest to ensure the grievances of any persons whose human rights have been violated are heard. Without it, there is no access to justice...I would appreciate a reply acknowledging receipt of this letter...Sincerely, Ted Smith..."

"Malaysian Bar unanimously supports rights defender sued by Asahi Kosei", Aliran, 19 Apr 2011

“...the Malaysian Bar unanimously carried a motion in support of human rights defender Charles Hector....In the motion, the Malaysian Bar refers to... the Declaration on Human Rights Defenders...The Bar also references Malaysian law...The motion states that public interest places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. The Bar declares that ‘...it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and...ensure that all rights of workers that work in the company are not violated, and justice is upheld’... [Includes full text of the motion]

"Stop legal action against Malaysian human rights lawyer and blogger", FORUM-Asia, 27 Apr 2011

"The Asian Forum for Human Rights and Development (FORUM-ASIA) received information regarding a law suit being filed against Mr. Charles Hector Fernandez, a Malaysian human rights lawyer, activist and blogger over defamation...FORUM-ASIA believes that Mr. Charles Hector merely highlighted on his blog complaints of the 31 Burmese migrant workers and the allegation that they were paid far less than what was promised. Mr. Hector acted on behalf of the workers who are not familiar with their rights in Malaysia and helped them in lodging a complaint with SUHAKAM, the Human Rights Commission of Malaysia...The defamation charges and the lawsuit filed against Charles Hector hinder him in his work as a human rights defender, advocating the rights of the 31 Burmese migrant workers. Rather than investigating and ensuring that workers’ rights are protected, Asahi Kosei (M) Sdn. Bhd. chose to sue the person who highlighted these violations..."

Source: Business & Human Rights Resource Centre

http://www.business-humanrights.org/Documents/asahikoseilibelsuit

NON OF COMPANY INVOLVED HAS DONE THE RIGHTS THINGS PLEASE TAKE ACTION BY SIGNING THE PETITION HERE :

https://www.change.org/petitions/ford-chrysler-and-sony-dont-buy-from-factories-that-fight-against-human-rights

AND HERE:

http://www.thepetitionsite.com/319/--if-gte-mso-9xml-wworddocument-wviewnormalwview-wzoom0wzoom-wtrackmoves-wtrackformatting/

The full trial is now fixed for August 24-26 2011

Company chastised for suing Malaysia rights lawyer (AP)

Associated Press

Company chastised for suing Malaysia rights lawyer

By SEAN YOONG , 06.23.11, 05:33 AM EDT

KUALA LUMPUR, Malaysia -- A company's multimillion-dollar lawsuit against a rights lawyer who complained about how it treated migrant workers in Malaysia could scare activists across the country into silence, an international rights group warned Thursday.

The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding 10 million ringgit ($3.3 million) in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation.

Hearings are scheduled to begin June 28.

Human Rights Watch complained about the large sum the company is seeking, saying it could "intimidate labor and human rights defenders all over Malaysia."

"A company's right to protect its reputation should not become a way to cut off important discussions of matters of public concern," the New York-based group said in a statement.

Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case.

Activists have long voiced concerns about the living conditions of hundreds of thousands of migrant laborers who mainly have menial jobs in Malaysian factories, plantations, construction sites and restaurants. Most are from poorer countries in Asia such as Indonesia, the Philippines and Bangladesh.

"Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers," Human Rights Watch said.

Asahi Kosei did not appear to dispute Hector's claim of rights abuses involving the workers but asserted he was wrong about the company's relationship with the workers, Human Rights Watch said.

The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers.

The Malaysian Bar Council, which comprises thousands of lawyers, expressed support earlier this year for Hector, saying Asahi Kosei's lawsuit was "a deplorable and coercive act." - Forbes.com, 23/6/2011, Company chastised for suing Malaysia rights lawyer

Malaysian Bar Press Release: Defend human rights defenders (Charles Hector) and safeguard migrant workers.

Press Release: Defend human rights defenders and safeguard migrant workers Monday, 21 February 2011 10:55am

Asahi Kosei (M) Sdn Bhd’s threat to bring a RM10 million defamation lawsuit against Charles Hector, a Member of the Malaysian Bar, is a deplorable and coercive act. The Japanese-owned Malaysian company has demanded this sum over a blog article by Charles Hector in which the latter alleges that, in response to grievances raised by 31 of their workers from Myanmar, the company threatened the workers with termination of employment and possible deportation back to Myanmar. The complaints ranged, it was alleged, from non-payment of agreed wages, unlawful deductions, and monetary penalties for absences from work. We call on both the Malaysian and Japanese authorities to launch immediate investigations into the authenticity of the allegations that Charles Hector has brought to light, and to act immediately to prevent the committing or continuation of any human rights abuses against migrant workers. Instead of harassing them and threatening them with incarceration, sedition or, in this case, defamation, state and non-state actors would do well to study the allegations made by human rights defenders like Charles Hector on behalf of voiceless migrant workers. They should also carefully study the terms and conditions of work to which migrant workers are subject, the conditions under which they live, and the restrictions under which they are placed, to ensure that these conform to internationally-accepted standards. The case also brings to light the practice, permitted by the Immigration Department and the Ministry of Human Resources, of allowing selected companies who have no labour operations themselves to nonetheless recruit foreign workers from overseas, and then to outsource these workers to third parties for a fee. To avoid any further incidents of abuse against migrant workers, or allegations of the same, the Malaysian Bar calls upon the Government to quickly ratify and implement the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was adopted by the UN General Assembly on 18 Dec 1990, and to give full effect to the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, made on 13 Jan 2007. The Malaysian Bar also calls on the Government to support and uphold the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, otherwise known as the Declaration on Human Rights Defenders, which was adopted by the UN General Assembly on 9 Dec 1998. In particular, we urge the Government to take all necessary measures to ensure the protection of these human rights defenders from any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in the Declaration. This incident gives the Government a clear opportunity to improve its less-than-sterling record of protecting those who stand up for human rights. Ragunath Kesavan President Malaysian Bar 21 February 2011

http://www.malaysianbar.org.my/press_statements/press_release_defend_human_rights_defenders_and_safeguard_migrant_workers.html